By Carl Watner

Introduction

After being summoned for jury service in January 2016, I became interested in the origin and history of compulsory jury duty. How long had this practice existed? Where did the idea originate that one could be compelled to be a juror? What I discovered is that historians do not have a hard and fast answer to these questions. Some of them identify jury service as an ancient practice, going back at least 1,000 years to the Germanic-Frankish tribes of Europe. Others see it beginning in England, where the jury appears to have begun as a royal institution imposed by the Norman conquerors beginning in 1066. Officers of the early English kings conducted inquests in which local residents were required to participate. It is clear, however, that “the entire system depended upon coercion.” Jurors in medieval England were never volunteers. “They were compelled to appear, compelled to swear, and compelled to remain until their duty was done.” [1] The violence and threats exercised upon them still manifest themselves in the 21st Century United States under the guise of compulsory jury service. But even more than that, I came to the realization that the entire American judicial system, including the jury, is based on coercion. All the salaries of personnel (judges, clerks, jurors, marshals, police, maintenance men, etc.) are paid for by taxes; all the resources they use are funded by taxes; jurors are ordered under threat of fine or prison, or both to appear when summoned. Jurors are compelled under threat of contempt to reveal their personal lives and biases in the event that a defense or plaintiff attorney may want to exclude them from serving. In sum, the whole system is fraught with coercion from beginning to end.

Furthermore, just like the present-day democratic state’s electoral system, the jury system was crafted to capture the participation of subjects in a way that made them think they were honorably and legitimately serving both their community and their king. This both softened and legitimized the coercive aspects of jury duty. Just like the electoral system of today, the jury system historically involved local people in the decision-making processes. The early English kings lacked the resources to create a body of paid officials capable of reaching and enforcing judicial decisions. Consequently, they “cultivated the goodwill and support of their subjects” by relying upon local juries. “By giving jurors a stake in how the verdict was reached,” it “gave them a stake in seeing that the verdict stuck” when the king’s judges left their shire. [2]

Even though their participation was required, the medieval Englishmen had a great faith “in the ability of jurors to reach fair decisions.” [3] The jury system was extremely popular: it was considered the voice of the local community speaking the truth. However, the king and his officials also had a vested interest in creating such a community sentiment. The jury system “effectively married the widespread popular belief that juries were fair and reliable, with the interest of kings and royal administrators … . The jury system worked because it was seen as a legitimate exercise of royal authority; its success depended on the willingness of people – lots of people”: peasants, landowners, and knights – “to cooperate with the king’s demand for service.” [4] Once again, the legitimacy of the decisionmaking process rose to the fore. Goodwill and support had to be earned. The jury system made this possible.

Historical Overview

Historians are not agreed upon the actual origin of the jury, shrouded as it is in the mists of ages gone by. Prior to the Norman invasion of Britain, what is now called the jury may have originally consisted of gatherings of local folks (hence the term ‘folk law’) to resolve disputes among their neighbors. What we now refer to as the common law was a description of the customary ways that governed how community members and neighbors spontaneously and voluntarily adjusted their differences and settled disputes. [5] After the defeat of the British tribes, William the Conqueror and his successors began empanelling inquests in order to regulate and adjust the customary rights of the people, the church, and the Crown. One may conclude that some mix of these two possible origins is the best answer of where and how the jury originated.

Frederick Pollock and Frederic Maitland, wellrespected 19th Century legal historians, described the jury “as a body of neighbors summoned by a public officer to answer questions upon oath.” They trace its origin back to the ninth century. “In 829AD the Emperor Louis the Pious, successor of Charlemagne, directed that thereafter royal rights should be ascertained not by witnesses produced by the parties interested but by the sworn statement of the best and most credible persons in the locality. At that time the rights of the crown rested in custom” and that custom was “to be declared by twelve neighbors upon their oath.” [6] Pollock and Maitland, and another 19th Century German historian, Heinrich Brunner realized the jury was “intimately connected with royal power.” [7] As Brunner saw it, “the jury as it entered English law was in all essential respects a royal institution. The [jury] did not grow up from village assemblies but down from the power of the crown.” [8]

Other historians trace the jury back to the inquests of the medieval English kings. “[T]he inquest was one of the principal means by which the monarchy developed a centralized government in England.” It was typically initiated by “some official on the authority of the crown” who called together a group of men from the same locality “to reply under oath to any inquiries that might be addressed to them.” The inquest was considered to be the representative verdict of the neighborhood with regards to land ownership, feudal obligations, and any other disputed question of local fact. As Leonard Levy concluded in his book, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY: “What was once only an administrative inquiry became the foundation of the jury of accusation and the jury of trial in both civil and criminal matters.” [9]

Harold Berman in his book, LAW AND REVOLUTION, connects the origin of the inquest to the Frankish emperors and kings of the eighth century. From that time on, itinerant royal administrators summoned neighbors to answer questions of local import. Among the prerogative rights preserved by the Frankish kings after the fall of Rome was the imperial inquest system, which operated on the principle that whatever information was needed to maintain a strong and efficient government must be given under oath to royal agents.” [10] The Normans took over this practice from the Franks. Berman refers to the mammoth inquest undertaken by William I after he conquered England. This was conducted neighborhood by neighborhood, and required public disclosure of all landholdings and tax assessments, the whole census being recorded as the Domesday Book (1085-1086). Berman also comments that other customary tribal practices influenced the development of trial by jury. “Apart from the Frankish and Norman sworn inquest conducted by royal officials, the occasional practice of submitting disputes to a group of neighbors for decision was also a feature of Germanic local law. In addition, church courts in the twelfth century occasionally put questions of guilt or innocence to groups of twelve; and Henry II’s father, Geoffrey of Anjou, made trial inquest available for important civil cases in Anjou and Normandy. The idea of summoning a group of people – twelve was considered an appropriate number and perhaps even a magic number – to give information under oath in a solemn proceeding, and even to give judgment in a case, was by no means new (though it was not widely practiced) when Henry came to the English throne” in 1154. Berman observes that the idea of the royal inquest “was to compel people to inform on one another.” [11]

Another historian, D. A. Crowley, connects the compulsion we find in current day jury duty to the frankpledge and tithing groups. According to the author of “Frankpledge” in Wikipedia, “Frankpledge … was a system of joint suretyship common in England throughout the Early Middle Ages.” Crowley points out that “King Cnut [995-1035] made tithing membership compulsory for every free man [in England] over twelve and adequate surety compulsory for all men. … The system envisaged … was one in which membership was required of all males over twelve whose status in society was not sufficient surety for their good behavior.” “The essential characteristic was the compulsory sharing of responsibility among persons connected through kinship, or some other kind of tie such as an oath of fealty to a lord or knight.” [12] These men were joined together in groups of approximately ten households, which were then called tithings. The function of the tithing was threefold: 1) it served as a pledge for the appearance of its members in court; 2) the tithing had to pursue and capture thieves; 3) lastly the tithing had court duties, such as paying fines of its members and producing evidence. The chief pledge or tithing-man, was responsible for producing any man belonging to his tithing that was suspected of a crime. “If the man did not appear, the entire group could be fined.” [13] By “the twelfth and early thirteenth centuries, English kings had developed a system of governance based on frankpledge and the inquest that required individuals and communities to provide unpaid service for the operation of the royal courts, administration, and army.” For example, “landowners [and knights] were obliged to serve on juries and hold judicial offices” such as sheriff and bailiff. [14] Fines and penalties, known as amercements, were imposed on those who refused to serve, and on others who refused to appear as jurors.

Thus it is possible to say that when the frankpledge group and the royal inquest of medieval England met each other, their combination and interaction spawned the modern-day jury. James Masschaele in his book, JURY, STATE, AND SOCIETY IN MEDIEVAL ENGLAND notes that juries “were a core part of the process of state formation. In medieval England, as in most of Europe, the power of the state was” largely felt “through the operation of the courts … . Jury service constituted one of the state’s biggest demands and one of the most intense forms of local involvement with the state.” [15]

Palladium of Liberty or Tool of the State?

Historians, for the most part, have been oblivious to the coercion that is inherent in the judicial system and jury. They have called the jury the palladium of liberty, ignoring the fact that jurors were under compulsion to serve. To the best of my knowledge, the first libertarian to identify the coercive feature of jury duty was Murray Rothbard. In his book, FOR A NEW LIBERTY, he wrote “There is little difference in kind, though obviously a great difference in degree, between compulsory jury duty and conscription; both are enslavement, both compel the individual to perform tasks on the State’s behalf and at the State’s bidding. And both are a function of pay at slave wages.” [16] Referring to military service, but equally applicable to jury duty, Milton Friedman described these types of conscription as “a tax in kind – forced labor from” people “who serve involuntarily.” [17]

Nevertheless, the justices of the Supreme Court of the United States have held to the contrary. They have refused to classify jury service and military conscription as forms of slavery, which if such were the case would make them subject to the Thirteenth Amendment, which prohibits all forms of involuntary servitude except as punishment for crimes committed. In the case of Butler v Perry (240 US 328) decided in 1916, a majority of the justices recognized that “tenants in Anglo-Saxon England had a threefold obligation …: the so-called ‘common burdens’ of military service, fortress work, and bridge repair.” [18] “Ancient usage and unanimity of judicial opinion justify the conclusion that, unless restrained by constitutional limitations, a state has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable period on public roads near his residence without direct compensation.” This “does not amount to imposition of involuntary servitude … nor does the enforcement of such a requirement deprive persons of their liberty and property without due process of law in violation of the Fourteenth Amendment.” The Court held that the Thirteenth Amendment “introduced no novel doctrine with respect to services always treated as exceptional, and certainly was not intended to interdict enforcement of those duties which individuals owe to the state, such as services in the army, militia, on the jury, etc. The great purpose in view was liberty under the protection of effective government, not the destruction of the latter by depriving it of essential powers.” [19]

On Being a Good Neighbor

So given the voluntaryist objection to compulsion, what obligation, if any, does the citizen have to his neighbors and community? If two of my neighbors are having an argument do they have the right to compel or conscript me into becoming their arbitrator and force me to decide on the merits of their disagreement? If they are having an argument, do they have the right to compel me to testify? I think it is safe to say from this perspective, that my neighbors do not have the right to force me to attend to their dispute. Who would want an arbitrator that had to be coerced into making a decision? What kind of decision could be expected from such a person? Wouldn’t he be biased against both their positions, if for no other reason than that they forced him to be involved?

On the other hand, though, is there not something to be said for being a good neighbor? Do we find these kinds of enforced obligations in customary and non-state societies? Apparently so. Michael van Notten, author of THE LAW OF THE SOMALIS, noted that “landowners have certain obligations to the clan, in particular to help defend the clan’s territory against bandits and raids from neighboring clans. They are also supposed to work on the communal lands and wells, practice charity, engage in guus [cooperate in making improvements that would be beneficial to the community], assist in providing justice, etc.” Similarly, “most families have a welfare fund into which all individual members are required to contribute. … An individual unwilling to do so is always free to leave and set up on his own somewhere else. But he cannot stay in the extended family, enjoy all the protection it offers, and refuse to make a contribution. If he doesn’t do so voluntarily, family members are entitled to go to court and compel him.” [20]

Moreover, “Somalis are not free to decide whether or not to insure themselves;” their customary law obliges them to do so. “A family is free to terminate its insurance of a member who repeatedly violates the law. … When this happens, the person becomes an outlaw and must leave the jilib [the family’s surety group] … .” This inevitably means he must leave his clan’s territory. Since he is no longer insured by the family he cannot expect the benefits derived from being part of the family and clan. Every Somali is free to leave his clan, so long as he is willing to bear the consequences. There is no power to stop a clansman from leaving his judicial unit, the jilib. However if a Somali were to leave his clan group, he would forfeit whatever protection it offered, and he would be on his own with no protection from bandits, accidents, or catastrophes. Such a person “could be killed on sight by anyone, with impunity,” since he would have no family or surety group to protect him. [21]

It is evident that in non-state societies most people would generally be eager to belong to a surety group or protection agency that would look out for their best interests. In return there would be certain obligations they would have to meet. They might have to perform certain types of community service or pay a monetary fee to be protected. However, they would not be forced to do so. How would this play out in our modern day society? No one can know for sure, but dissidents and refuseniks would probably be restricted in their interactions with those who were insured. Conscientious objectors would have their rights respected, but they would also have to suffer the consequences of ‘going it alone.’

Looking at it from this point of view, our political governments have taken the activity of helping others resolve their disputes peacefully and turned it into an institution which people are forced to support. They are forced to serve as jurors or witnesses; they are forced to contribute to the salaries and upkeep of the people and resources used to operate such a system. As in most other similar situations, the voluntaryist does not object to the resolution or mediation of disputes. What the voluntaryist objects to is the use of coercion to support such activities. The voluntaryist opposes government jury service not because he objects to being a juror but because he opposes being a government juror. The voluntaryist objects to all political government, including that government’s involvement in judicial activities. The voluntaryist objects to the coercion that sustains the entire judicial system; not the social institutions that would evolve in the absence of the state to settle legal issues. [22]

Voluntaryists realize that the jury is a government institution that probably evolved out of tribal custom and the inquests of the Norman conquerors of England. The jury was used to obtain people’s support for their government. Today some libertarians urge jury participation as a means of combating bad laws. Based on legal precedents not discussed in this paper, the Fully Informed Jury Association encourages jurors to decide the law according to what they think is right. A wellknown advocate of jury nullification claims that “a citizen … conscripted into serving his government, should be entitled to make the presumption that his government would not require him to participate in an injustice.” [23] However, this view is wrong. The citizen is already being required to participate in what is essentially a coercive judicial institution. Voluntaryists cannot recommend such participation, but they do recognize the value of volunteering to help judge a case when their community and neighbors may benefit from it. Government conscription of jurors is already an injustice. It is impossible in the nature of things for an injustice to result in justice. Compulsory jury service, no matter how long it lasts – whether one day at a time or one trial at a time – is still slavery, even if it would seem to negate or mitigate the disastrous results of government law.

End Notes
[1] David J. Seipp, “Jurors, Evidences, and the Tempest of 1499,” in John W. Cairns and Grant McLeod (editors), “THE DEAREST BIRTH RIGHT OF THE PEOPLE OF ENGLAND” THE JURY IN THE HISTORY OF THE COMMON LAW, Oxford: Hart Publishing, 2002, pp. 75-92 at p. 79.
[2] James Masschaele, JURY, STATE, AND SOCIETY IN MEDIEVAL ENGLAND, New York: Palgrave Macmillan, 2008, p. 66.
[3] ibid., p. 118.
[4] ibid., p. 205-208.
[5] Spencer Heath, “Origin of the Jury from Earliest Times,” Item 621 in the Spencer Heath Archive. Random taping by Spencer MacCallum from conversation with Heath, November 10, 1955.
[6] “Jury,” Volume 8 ENCYCLOPAEDIA OF THE SOCIAL SCIENCES, New York: The Macmillan Company, 1959, pp. 492-493.
[7] Sir Frederick Pollock and Frederic William Maitland, THE HISTORY OF THE ENGLISH LAW, Volume I, Second Edition, Cambridge: At the University Press, 1968, p. 140. The First Edition appeared in 1895.
[8] Lloyd E. Moore, THE JURY: TOOL OF KINGS – PALLADIUM OF LIBERTY, Cincinnati: Anderson Publishing Co., Second Edition, 1988, p. 19. The First Edition appeared in 1973.
[9] Leonard W. Levy, THE PALLADIUM OF JUSTICE: ORIGINS OF TRIAL BY JURY, Chicago: Ivan R. Dee, 1999, pp. 7-9. [10] Bryce Lyon, A CONSITUTIONAL AND LEGAL HISTORY OF MEDIEVAL ENGLAND, New York: W. W. Norton, 1980, Second Edition, p. 183.
[11] Harold J. Berman, LAW AND REVOLUTION, Cambridge: Harvard University Press, 1983, pp. 448-449 and p. 451.
[12] “Frankpledge,” from Wikipedia, the free encyclopedia. See www.en/wikipedia.org/Frankpledge, and D. A. Crowley, “The Later History of Frankpledge,” 48 BULLETIN OF THE INSTITUTE OF HISTORICAL RESEARCH (May 1975), pp. 1-15 at p. 1.
[13] “Frankpledge,” from Wikipedia, and Lyon, op. cit., pp. 196-197. Also see William Alfred Morris, THE FRANKPLEDGE SYSTEM, New York: Longmans, Green, and Co., 1910, p. 11 and 37.
[14] Scott L. Waugh, “Reluctant Knights and Jurors: Respites, Exemptions, and Public Obligations in the Reign of Henry II,” 58 SPECULUM (October 1983), pp. 937-986 at p. 962.
[15] Masschaele, op. cit., p. 6.
[16] Murray Rothbard, FOR A NEW LIBERTY, New York: The Macmillan Company, 1973, p. 99. This quote appears in Chapter 5, “Involuntary Servitude,” in the section headlined “The Courts.” Another earlier libertarian, Benjamin Tucker noted in his book, INSTEAD OF A BOOK, reprinted New York: Haskell House Publishers, 1969 : “Jury service (ought) not to be compulsory, though it may rightfully be made, if it should seem best, a condition of membership in a voluntary (judicial) association.” His comments originally appeared in LIBERTY, Issue 68, October 24, 1885, p. 4.
[17] Milton Friedman being quoted by James A. Dorn, “Abolish Jury ‘Draft’,” Printed from Cato.org. Dorn’s article first appeared in the BALTIMORE EXAMINER, July 24, 2006.
[18] “Fyrd” from Wikipedia, the free encyclopedia. See the following explanation from www.en.wikipedia.org/wiki/Fyrd. “The Germanic tribes who invaded Britain in the fifth and sixth centuries relied upon the unarmored infantry supplied by their tribal levy or fyrd … . The fyrd was a local militia in the Anglo-Saxon shire, in which all free men had to serve. Those who refused military service were subject to fines or loss of their land.”
[19] Butler v. Perry, 240 U.S. 328 (1916), pp. 328 and 333.
[20] Michael van Notten, THE LAW OF THE SOMALIS, Trenton: The Red Sea Press, Inc. 2005, pp. 53 and 77-78.
[21] ibid. p. 40. Thanks to Spencer MacCallum for his comments relating to this paragraph.
[22] For more on the importance of the common or customary law see the various authors quoted by Carl Watner, “What Came First – the Chicken or the State?” THE VOLUNTARYIST, Whole Number 151, 4th Quarter 2011. Also see Rothbard, op. cit., on “Police Protection,” in Chapter 11, “The Public Sector III: Police. Law, and the Courts.” On the ancient institution of arbitration see Carl Watner, “Stateless, Not Lawless”: Voluntaryism and Arbitration,” THE VOLUNTARYIST, Whole Number 84, February 1997.
[23] Clay S. Conrad, JURY NULLIFICATION, Durham: Carolina Academic Press, 1998, p. 257. Thanks to Dave Scotese for his comments relating to this paragraph.